Cape Town - For Public Protector nominee Judge Siraj Desai, who currently sits as a high court judge in the Western Cape, the idea of making a change after all the years on the bench, prompted him to accept the nomination.
Desai had been nominated along with 72 others for the position which will open up in October this year, after the popular Thuli Madonsela leaves following a successful seven-year term.
The 65-year-old judge was nominated by three senior colleagues of the Cape bar, all three friends and colleagues of his.
"I’ve been a judge now for 21 years, sitting here at the Western Cape High Court. It’s been a long and illustrious career. But now, I need some change in my life," he explained.
"My family is obviously not too happy to have changes this late in my life," he laughed. "But I’m happy to take the challenge and feel I’m fit enough to take the challenge."
"And most importantly, I’ve been an activist all my life."
'Rooted in society'
Desai grew up in Salt River at the foot of Devil’s Peak, just outside the Cape Town city bowl.
He matriculated from Trafalgar High School in the late 1960s, and said he’s upbringing made him politically aware from an early age, "about 11 or 12".
As a teenager, he witnessed the forced removals In District Six under the Group Areas Act.
It is this connection with his community that he feels gives him an advantage, not only as a judge, but as a nominee for Public Protector.
"I’m rooted in my society," he said.
"When I heard the Najwa Petersen case, I was judging both the deceased and the accused. They were my peers, people I knew.
"I could understand the nuances of the case and social circumstances. It made me well disposed to hearing that matter and I think my colleagues agree."
Desai has overseen many high profile cases in his 21 years as judge of the Western Cape High Court.
He ranks three among his most prominent: The murder trial of Najwa Petersen; a case relating to debt collecting practices in the country; and the State vs Gaqa.
"The most important case I’ve heard though is a more recent case, where I dealt a blow to debt collectors who were improperly collecting money from millions of South Africans.
"I’ve lived my life to protect the poor of this country... For years I’ve been doing cases for banks and business enterprises fighting the poor, and most time fighting successfully against the poor.
"But in this case, I was able to deliver a blow in favour of the poor that impacts the lives of millions of South Africans.
"That’s a rare moment in the life and a career of a judge, to get a case that impacts so decisively on the life of the poor. What irks me is that they were able to get away with it for so long."
Desai studied at University of Durban-Westville, now University of KwaZulu-Natal, and attained a BA LLB in 1975.
He recalled his time as a student with fondness, saying he was surrounded by a "great generation" of student activists.
"When I got to Durban we were a generation in protest. It was the city where the black consciousness movement started."
During his time there, Desai counted Finance Minister Pravin Gordhan and retired Constitutional Court judge Zac Yacoob as his peers, and also met famed anti-apartheid activists Rick Turner and Steve Biko while they were all students.
"These people shaped many instances in my thinking. My greatest tribute would be to a man like the late advocate, BM Kies. I was sitting next to him when he died in court in 1979. He was one of my heroes."
Rise to the bench
Desai started articling as a lawyer in 1976, and his future career would naturally take a political tone following the Soweto uprisings.
He worked very closely with his senior Dullah Omar during his time as an advocate, encouraged by the political activists he defended in court in the 1980s, including many members of Umkhonto we Sizwe, the armed wing of the African National Congress in exile.
Omar would go on to become the first post-apartheid minister of justice.
Desai, himself, was the first person of colour from the Western Cape appointed to the bench, and the second nationally, following the appointment of John Hlophe six months earlier in 1995.
He was also involved in the local structures of the ANC during his time as an advocate, serving as chairperson of the ANC's residents' association in Woodstock.
He had to drop all his political affiliations after being appointed a judge.
Desai discussed the impact of the third most important case he heard: State vs Gaqa.
Two men were on trial for murder, after killing two people in a botched robbery attempt at an FNB bank in Bellville in 2001.
The evidence, a bullet, was lodged in the leg of one of the assailants, Sizwe Alfred Gaqa.
The State filed for the removal of the bullet through the court, but Gaqa refused on the grounds of "bodily interference".
"The allocation was that that bullet was taken from a crime scene. I ordered that the bullet be removed, and the bullet matched the crime scene. The two accused [including Gaqa] got life sentences.
"Some of my colleagues in other divisions differed from my result, those who have their heads dug in the ground. They said I was wrong, I shouldn’t have made that order.
"But who the fuck cares? The guys were sentenced and had the logical result of protecting our people, and putting real criminals behind bars. So I consider that an important judgment."
The high court judge’s career has not been devoid of controversy though.
In 2004, he was the subject of a rape accusation while in Mumbai attending the World Social Forum.
He was accused by a South African Aids activist, but a court later found that the evidence was baseless.
"The incident in India, the allegation was serious, but not the factual basis for it. It was dismissed by the Indian court.
"I wasn’t acquitted or found guilty or even not guilty; there was no trial. The regional court dismissed the allegations against me on the basis of the evidence.
"Rehashing that is to do me a great disservice, not because the alleged offence is not serious, but because it’s something that was dismissed by a court of law."
In 2007, Pan Africanist Congress member Thami ka Plaatjie lodged a complaint after alleging that Desai had been involved in a verbal altercation with a colleague during a meeting.
Ka Plaatjie also took issue with Desai being sued by the Oasis property group after publically criticising some of the group’s deals.
"The Thami ka Plaatjie incident, we read the headlines in the newspapers, and then he disappeared?" he said rhetorically.
"I don’t know whose interests he was advancing there, certainly not the PAC. I was counsel for the PAC in their most difficult cases here, especially with the St James massacre [in 1993].”
Desai said the alleged incidents were piffy: An alleged argument in a meeting, which he "can’t even remember" and a defamation lawsuit brought against him by Oasis, which was later dropped.
“All these incidents fizzled out, not because I was acquitted, but because the foundations of these cases were found to be baseless," he said matter-of-factly.
Desai said his job as a high court judge has made him high profile, and therefore he would always be exposed to controversial incidents.
"They were controversial, yes, but none of them diminished my stature as a judge: Those who wished malice toward me, and there are some who disagree with me politically. I also haven’t led an uncontroversial life. My life has always been controversial. Everything I do is high profile. These are chapters I survived.
"They do not affect my objectivity or my understanding of the world around me. They may be controversial, but I remain unblemished."
He is fully conscious of the pressures the job as public protector would entail.
"I accept that it will be a challenging job. My life hasn’t been a bed of roses up till now. As an advocate, I appeared in the most repressive courts in the country. I fought them diligently and my results and courage is legendary, if you speak to my colleagues.
As a judge, he has stood up against his colleagues at times. "I’ve stood up against many other leadership figures, even in the process of transforming the judiciary.
"I’ll be honest, it is a bit intimidating, but I’m still fighting fit."
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